A woman stands in a trolley car in a short skirt, wearing the somewhat zoned-out expression that is almost unavoidable on public transportation. Next to her, you notice a man angling his cell phone camera so that he could snap a picture underneath the woman’s skirt. What would you do? Is a crime even being committed? According to Michelle Menkin—an attorney representing Michael Robertson an Andover, Mass. resident accused of doing just that to an undercover police officer—the answer is: No.

Boston Magazine reports that, “Menkin argued this week [to Superior Court Judges] that the current law being used to charge Robertson can’t be the basis of conviction because,” the specific law does not apply to people who are wearing clothing. The Peeping Tom statute protects citizens from “surveillance” when nude or partially nude in a place where there is “a reasonable expectation of privacy.” Thus, Menkin argued that to apply this law to clothed people in public could lead to the eventual punishment of “artistic and journalistic activities protected by the first amendment.”

The Suffolk County District Attorney offered a counter argument that says there is an expectation that to take such photographs is unacceptable behavior and it violates the victims’ rights because these are areas that are not purposefully exposed in public. Massachusetts Senator Katherine Clark submitted a bill in January that would amend the law to reflect changing technology and add the term “intimate area” which would extend privacy protection to “human genitals, buttocks, pubic area, or [the] female breast below a point immediately above the tip of the areola, whether naked or covered by undergarments.”

In the 1984 romantic comedy Splash, there is a running gag where John Candy’s character Freddie drops a handful of change so he can sneak a look up women’s skirts while picking it up. He’s not a villain, just kind of a creep. There are a large percentage of males who find voyeuristic behavior titillating, it’s a normal impulse to want see what one is “forbidden” to see. However, especially with the addition of pictures and videos that can be shared with the world on the internet, there’s no question that this is a violation. What remains to be seen is if there is a legal cost for it.